The Counter-Clerks Of Justice Scalia
New York University School of Law; Jones Day
April 7, 2016
NYU Journal of Law & Liberty, Vol. 10, No. 1, 2016
Abstract:
“So, what are you going to do when you’re done here?”
That’s what he asked me first. I had just sat down in his chambers, on a big, overstuffed leather couch. It was a day in early April, and I’d spent my last few minutes sitting across the street in a park, shuffling through the index cards I’d been using for weeks to prepare. The cards were organized by topic, each with a few bullet points to remind me of what the man across from me thought about every subject on which he’d had an opinion over the last quarter-century. From A (the Administrative Procedure Act) to Z (Zerbst, a doctrine about the voluntary waiver of constitutional rights), it was all there.
But this? He wants to know what I want to be when I grow up?
“Well,” I said to Justice Scalia. “I’m thinking about becoming a lawyer.”
The Counter-Clerks Of Justice Scalia – Introduction
IN OCTOBER TERM 2012, I was a law clerk for Justice Scalia. When that fact comes up in conversation (say, at a social gathering), the reaction is almost always the same: “Cool!” people say, which is about my view on it, too. And then (I know it’s coming, and nowadays I just wait a beat for it): “Wait . . . You’re not, um . . . Are you a Republican?” To get a sense of the tone—relative certainty touched with a hint of concern—imagine asking a person seated next to you at dinner, “You don’t have pink eye . . . Do you?”
“No,” I say, trying not to sound as defensive as I feel. “I’m not.” And it’s true. I am no kind of Republican. In college, I made my first political donation to Howard Dean (ten bucks), and I’ve never looked back. So no—I’m not a Republican. (The experience of being interrogated about this fact so many times, however, has given me a genuine sympathy for the so-called “shy Tory” problem, whereby conservatives are nervous to admit what they think in social settings lest they face the opprobrium of their peers.)
What, then, was I doing there? Most lawyers know that Justice Scalia would sometimes hire a politically liberal law clerk to be one of the four who worked for him each year. But I’ve found that most people who aren’t lawyers don’t know that. “Oh,” they’ll say. “So you were like, the token liberal?” That’s essentially right (though typically people don’t like being described to their faces as “tokens”).
In the parlance, the term was counter-clerk. The autumn after I worked for him, the Justice explained his rationale for this practice in an interview with New York magazine. 2 “Other things being equal,” he said—“which they are usually not”—“I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives.” Such a person was useful, in his view, “to make sure I don’t make mistakes.”
In other words, as the Justice frequently remarked in other contexts, a good textualist judge should sometimes, perhaps even often, find himself coming to results that he finds politically bitter. As he put it in the New York interview, that is the consequence of “paying attention to [the] text” of the laws a judge is asked to apply, rather than simply “playing in a policy sandbox.” The Justice prided himself on having come to many such decisions over the years. He would often point to the Court’s decision in Texas v. Johnson,3 which held that flag burning is protected speech under the First Amendment. He joined that opinion, which was written by one of the Court’s greatest liberals, William Brennan, and his vote was necessary for the result—it was 5 to 4. And he joined the majority despite the fact that flag-burning personally offended him tremendously. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he would often cheerfully remark.4 But, he invariably added, “I am not King.” He was a judge, and the First Amendment said what it said.
Therefore it was useful, in his view, to have someone around whose political instincts would cause them to want flag burning to be protected, or who would want the EPA to set clean-air standards without regard to cost.5 A fainthearted textualist with conservative political leanings might feel tempted to look the other way in those cases. But that is the job of the counter-clerk, as he saw it: to stop your boss from doing something that would be a mistake by his own lights. You are required to speak up; your duty is to disagree, and to state that disagreement using the Justice’s methodology.
BUT BACK TO THE INTERVIEW. He laughed. He liked my smartalecky answer. He liked, too, that I wanted to move back to New York, where he’d grown up and where I’d gone to law school. (Washington, he said, wasn’t “a real city.”) And then he gave me some advice. When you finish here, he said, go to a law firm. “You’ve gotta soak ‘em,” he joked, referring to the signing bonuses for Supreme Court clerks, which have grown to astonishing heights. “But,” he said, you’ve also got to find a place that gives you time for your “other responsibilities.” I asked what he meant. “You have responsibilities to your family,” he said. “You have responsibilities to your church. These aren’t leisure activities. These are important obligations, and so many of these firms now work their young lawyers so hard that they can’t fulfill them.” It was an arresting bit of wisdom: How often does someone at the peak of your profession tell you not to let your work consume your life?
But before I could really digest it, he asked me a more substantive question: “Okay,” he said, “why don’t you tell me an opinion I’ve written in the last couple of years that you disagree with, so we can argue about it?” He said this with a rather mischievous smile, one I would come to know very well. I’ll spare you the back-and-forth about the case we discussed. But at the end, he waved me off with a laugh: “All right, all right. You picked a good one.” He’d had fun, and I had (I hoped) survived.
Shortly thereafter, he sent me up for the second part of the interview, conducted by the four current clerks, though not before warning me that the tradition was for them to deliver quite a grilling, and that—not to worry—“I don’t always listen to what they say.” We had been together perhaps twenty or thirty minutes. I shook his hand and walked out of his chambers, genuinely wondering whether I’d ever see him again.
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